Lawyering Fundamentals Torts Cases

Transcription

1 Lawyering Fundamentals Torts Cases

2 Reprinted with Permission from Thomson Reuters

3 TABLE OF CONTENTS INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY...17 INTENT...17 Garratt v. Dailey...17 Spivey v. Battaglia...20 Ranson v. Kitner...24 McGuire v. Almy...25 Talmage v. Smith...28 BATTERY...30 Cole v. Turner...30 Wallace v. Rosen...31 Restatement (Second) of Torts (Battery)...34 Fisher v. Carrousel Motor Hotel, Inc ASSAULT...37 I de S et. ux. v. W de S...37 Western Union Telegraph Co. v. Hill...38 FALSE IMPRISONMENT...41 Big Town Nursing Home, Inc. v. Newman...41 Parvi v. City of Kingston...43 Hardy v. LaBelle s Distributing Co Enright v. Groves...47 Whittaker v. Sandford...49 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS...51 State Rubbish Collectors Ass n v. Siliznoff...51 Slocum v. Food Fair Stores of Florida...55 Harris v. Jones...58 Taylor v. Vallelunga PRIVILEGES...92 CONSENT...92 O Brien v. Cunard S.S. Co Hackbart v. Cincinnati Bengals, Inc Mohr v. Williams...95 De May v. Roberts

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5 C A S E S A N D M A T E R I A L S PROSSER, WADE AND SCHWARTZ S TORTS T W E L F T H E D I T I O N by VICTOR E. SCHWARTZ Adjunct Professor of Law, University of Cincinnati College of Law Chairman, Public Policy Group, Shook, Hardy & Bacon L.L.P Washington, D.C. KATHRYN KELLY Professor of Law, The Catholic University of America DAVID F. PARTLETT Dean and Asa Griggs Candler Professor of Law, Emory University School of Law

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7 C H A P T E R II INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY 1. INTENT Garratt v. Dailey Supreme Court of Washington, Wash.2d 197, 279 P.2d HILL, JUSTICE. The liability of an infant for an alleged battery is presented to this court for the first time. Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff s home, on July 16, It is plaintiff s contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey s version of what happened, and made the following findings: III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant s small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth. IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, 17

8 18 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff. (Italics ours, for a purpose hereinafter indicated.) It is conceded that Ruth Garratt s fall resulted in a fractured hip and other painful and serious injuries. To obviate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial. The authorities generally, but with certain notable exceptions, [c] state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. * * * In our analysis of the applicable law, we start with the basic premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant s injuries. * * * It is urged that Brian s action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. * * * We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a) of 13, the Restatement says: Character of Actor s Intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced. [C] We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian s action would patently have been for the purpose or with the intent of causing the plaintiff s bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. [Cc] The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian s version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be. In this connection, we quote another portion of the comment on the Character of actor s intention, relating to clause (a) of the rule from [Restatement, (First) Torts, 29, 13]:

9 1. INTENT 19 It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor s conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section. A battery would be established if, in addition to plaintiff s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. [C] Without such knowledge, there would be nothing wrongful about Brian s act in moving the chair and, there being no wrongful act, there would be no liability. While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff s action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. [C] If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established. It will be noted that the law of battery as we have discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian s age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material. From what has been said, it is clear that we find no merit in plaintiff s contention that we can direct the entry of a judgment for $11,000 in her favor on the record now before us. Nor do we find any error in the record that warrants a new trial. * * * The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it. * * * Remanded for clarification.

10 20 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY [On remand, the trial judge concluded that it was necessary for him to consider carefully the time sequence, as he had not done before; and this resulted in his finding that the arthritic woman had begun the slow process of being seated when the defendant quickly removed the chair and seated himself upon it, and that he knew, with substantial certainty, at that time that she would attempt to sit in the place where the chair had been. He entered judgment for the plaintiff in the amount of $11,000, which was affirmed on a second appeal in Garratt v. Dailey, 49 Wash.2d 499, 304 P.2d 681 (1956).] NOTES AND QUESTIONS 1. The trial court judge found that plaintiff suffered damages in the amount of $11,000. For most intentional torts, the court will award nominal damages even if no actual damages were proved. Of course, if the plaintiff does prove actual damages, as she did in this case, defendant is liable for those actual damages. How would Ms. Garratt s lawyer prove actual damages? See Chapter 10, Damages. 2. Note that the trial judge was the finder of fact at both trials. Why do you think his findings of fact were different the second time? Might he have been influenced by the appellate court s view of the facts as well as its pronouncement of the law? 3. Can a child five years and nine months old have an intent to do harm to another? And if so, how can that intent be fault? Suppose that a boy of seven, playing with a bow and arrow, aims at the feet of a girl of five but the arrow hits her in the eye. Is he liable? Weisbart v. Flohr, 260 Cal.App.2d 281, 67 Cal.Rptr. 114 (1968) (yes). 4. Can a four-year-old child who strikes his babysitter in the throat, crushing her larynx, be held liable for an intentional tort? Bailey v. C.S., 12 S.W.3d 159 (Tex. App. 2000) (rejecting argument that four-year-old was incapable of intent). What about a two-year-old child who bites an infant? See Fromenthal v. Clark, 442 So.2d 608 (La.App.1983), cert. denied, 444 So.2d 1242 (1984) (affirming trial court ruling that two-year-old was too young to form intent). 5. Some states have parental responsibility statutes that make parents liable for their child s malicious torts. Can a young child commit a tort requiring a malicious state of mind? Ortega v. Montoya, 97 N.M. 159, 637 P.2d 841 (1981) (eight-year-old boy could be capable of willful and malicious conduct and it was for jury to determine whether he had acted in such a manner). Spivey v. Battaglia Supreme Court of Florida, So.2d 815. DEKLE, JUSTICE. * * * Petitioner (plaintiff in the trial court) and respondent (defendant) were employees of Battaglia Fruit Co. on January 21, During the lunch hour several employees of Battaglia Fruit Co., including petitioner and respondent, were seated on a work table in the plant of the company. Respondent, in an effort to tease petitioner, whom he knew to be shy, intentionally put his arm around petitioner and pulled her head toward him. Immediately after this friendly unsolicited hug, petitioner

11 1. INTENT 21 suffered a sharp pain in the back of her neck and ear, and sharp pains into the base of her skull. As a result, petitioner was paralyzed on the left side of her face and mouth. An action was commenced in the Circuit Court of Orange County, Florida, wherein the petitioners, Mr. and Mrs. Spivey, brought suit against respondent for, (1) negligence, and (2) assault and battery. Respondent, Mr. Battaglia, filed his answer raising as a defense the claim that his friendly unsolicited hug was an assault and battery as a matter of law and was barred by the running of the two-year statute of limitations on assault and battery. Respondent s motion for summary judgment was granted by the trial court on this basis. The district court affirmed on the authority of McDonald v. Ford, [223 So.2d 553 (Fla.App.1969)]. The question presented for our determination is whether petitioner s action could be maintained on the negligence count, or whether respondent s conduct amounted to an assault and battery as a matter of law, which would bar the suit under the two-year statute (which had run). In McDonald the incident complained of occurred in the early morning hours in a home owned by the defendant. While the plaintiff was looking through some records, the defendant came up behind her, laughingly embraced her and, though she resisted, kissed her hard. As the defendant was hurting the plaintiff physically by his embrace, the plaintiff continued to struggle violently and the defendant continued to laugh and pursue his love-making attempts. In the process, plaintiff struck her face hard upon an object that she was unable to identify specifically. With those facts before it, the district court held that what actually occurred was an assault and battery, and not negligence. The court quoted with approval from the Court of Appeals of Ohio in Williams v. Pressman, 113 N.E.2d 395, at 396 (Ohio App.1953): * * * an assault and battery is not negligence, for such action is intentional, while negligence connotes an unintentional act. The intent with which such a tort liability as assault is concerned is not necessarily a hostile intent, or a desire to do harm. Where a reasonable man would believe that a particular result was substantially certain to follow, he will be held in the eyes of the law as though he had intended it. It would thus be an assault (intentional). However, the knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. Thus, the distinction between intent and negligence boils down to a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid (negligence), and becomes a substantial certainty. In the latter case, the intent is legally implied and becomes an assault rather than unintentional negligence. The distinction between the unsolicited kisses in McDonald, supra, and the unsolicited hug in the present case turns upon this question of intent. In McDonald, the court, finding an assault and battery, necessarily had to find initially that the results of the defendant s acts were intentional.

12 22 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY This is a rational conclusion in view of the struggling involved there. In the instant case, the DCA must have found the same intent. But we cannot agree with that finding in these circumstances. It cannot be said that a reasonable man in this defendant s position would believe that the bizarre results herein were substantially certain to follow. This is an unreasonable conclusion and is a misapplication of the rule in McDonald. This does not mean that he does not become liable for such unanticipated results, however. The settled law is that a defendant becomes liable for reasonably foreseeable consequences, though the exact results and damages were not contemplated. Acts that might be considered prudent in one case might be negligent in another. Negligence is a relative term and its existence must depend in each case upon the particular circumstances which surrounded the parties at the time and place of the events upon which the controversy is based. The trial judge committed error when he granted summary final judgment in favor of the defendant. The cause should have been submitted to the jury with appropriate instructions regarding the elements of negligence. Accordingly, certiorari is granted; the decision of the district court is hereby quashed and the cause is remanded with directions to reverse the summary final judgment. It is so ordered. NOTES AND QUESTIONS 1. Distinguish: A. The intent to do an act. The defendant throws a rock. B. The intent to bring about the consequences of the act. The rock hits someone. Liability for intentional torts is premised on the intent to bring about the consequences (e.g., for battery, a touching that is harmful or offensive). C. The intent to bring about a specific harm (e.g., broken leg). This is sufficient to establish intent, but not necessary. D. The intent to do an act with actual knowledge on the part of the actor that the consequences (e.g., touching that is harmful or offensive) are substantially certain to follow. This is sufficient to establish intent. E. The intent to do an act with knowledge on the part of the actor that he is risking particular consequences. This is not sufficient to establish intent although it may be negligence if the risk is an unreasonable one under the circumstances. 2. Distinguish: A. The defendant does not act. He is carried onto plaintiff s land against his will. Smith v. Stone, Style 65, 82 Eng.Rep. 533 (1647) (no liability). B. He acts intentionally, but under fear or threats. Twelve armed men compel him to enter plaintiff s land and steal a horse. Gilbert v. Stone, Style 72, 82 Eng.Rep. 539 (1648) (liability). C. He acts intentionally, but without any desire to affect the plaintiff, or any certainty that he will do so. He rides a horse, which runs away with him and runs the plaintiff down. Gibbons v. Pepper, 1 Ld.Raym. 38, 91 Eng.Rep. 922 (1695) (no

13 1. INTENT 23 liability if someone else struck the horse; liability if defendant s spurring caused runaway). D. He acts with the desire to affect the plaintiff, but for an entirely permissible or laudable purpose. He shoots the plaintiff in self-defense or while a soldier defending his country. See Chapter 3 (satisfies intent requirement but may result in no liability if conduct is privileged). 3. While standing in line to pay for her purchases, plaintiff was attacked from behind by a mentally handicapped man who grabbed her hair and head and threw her to the ground. In an attempt to fit her claim within negligence, she argued that he was mentally incapable of forming intent to cause harm and thus did not commit a battery. The court rejected her argument, noting that the intentional tort of battery required only acting with intent to cause contact that was harmful or offensive, not acting with intent to cause harm. Wagner v. State, 2005 UT 54, 122 P.3d 599 (2005). 4. It may not seem important to distinguish between negligent and intentionally wrongful conduct: the defendant usually will be held liable to the plaintiff in either situation. Nevertheless, the distinction may be legally significant. Consider the following: A. Will defendant be liable for punitive damages? See Chapter 10, Section 3. B. Will the defense of contributory negligence be available to defendant? See page 613, note 7. C. Will defendant s employer be liable under the doctrine of respondeat superior? See page 614, note 3. D. How far will the law trace the consequences of defendant s wrongful act? See Tate v. Canonica, 180 Cal.App.2d 898, 5 Cal.Rptr. 28 (1960) (more inclined to find defendant s conduct was legal cause of harm if tort was intentional) and R.D. v. W.H., 875 P.2d 26 (Wyo.1994) (court imposes higher degree of responsibility on those who commit intentional act). E. Will the defendant be reimbursed through a liability insurance policy? See Allstate Ins. Co. v. Hiseley, 465 F.2d 1243 (10th Cir.1972) (applying Oklahoma law) (following an incident outside a bar, one car pursued another at speeds over 100 miles an hour and then bumped it, causing its driver to lose control and crash) and Automobile Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131, 850 N.E.2d 1152, 818 N.Y.S.2d 176 (2006) (insured shot an acquaintance in self defense inside insured s home). Pryor, The Stories We Tell: Intentional Harm and the Quest for Insurance Funding, 75 Tex.L.Rev (1997). F. Has the state statute of limitations run? See the principal case and Baska v. Scherzer, 283 Kan. 750, 156 P.3d 617 (2007) (statute of limitations for intentional tort applies to cause of action brought against two teenagers who hit the mother of one of their friends when the mother stepped between them to stop a fight). G. Will an employer be subject to liability to an employee in spite of a general worker compensation immunity shield? Some state worker compensation statutes provide an exception to the immunity for intentional wrongdoing. Does an employer s intentional failure to train an employee to perform a dangerous task supply the requisite intent to injure under the worker compensation intentional injury exception? See Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex.1985). What about an employer s deliberate exposure of employees to dangerous products? See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985) and Bardere v. Zafir, 102 A.D.2d 422, 477 N.Y.S.2d 131, aff d, 63 N.Y.2d 850, 472 N.E.2d 37, 482

14 24 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY N.Y.S.2d 261 (1984) (plaintiff must show specific acts [by the employer] directed at causing harm to particular employees ). H. Will the plaintiff be able to bring a cause of action against the United States, which may be liable for the negligent acts of its employees, but not for their intentional acts? See pages Do you think that a court s characterization of a defendant s conduct as negligent or intentional sometimes might be influenced by the legal effect of its finding? Since the court is not bound by either party s characterization of the events, such influence could occur, but only in close cases. At the receiving dock of a meatpacking plant, plaintiff was unloading a truck when a government meat inspector leapt out at him, screamed boo, pulled his wool stocking cap over his eyes, and jumped on his back. Plaintiff fell forward and struck his face on some meat hooks, severely injuring his mouth and teeth. Plaintiff s complaint was for negligent conduct, apparently because the defendant s employer, the United States, would not be liable for its employee s battery. Cf. Lambertson v. United States, 528 F.2d 441 (2d Cir.1976), cert. denied, 426 U.S. 921 (1976) (court did not permit plaintiff to recover by dressing up the substance of battery in the garments of negligence). 6. For a discussion of the treatment of intent in English and American tort law, see Finnis, Intention in Tort Law in Owen, Philosophical Foundations of Tort Law 229 (Clarenden Press 1995). Ranson v. Kitner Appellate Court of Illinois, Ill.App CONGER, J. This was an action brought by appellee against appellants to recover the value of a dog killed by appellants, and a judgment rendered for $50. The defense was that appellants were hunting for wolves, that appellee s dog had a striking resemblance to a wolf, that they in good faith believed it to be one, and killed it as such. Many points are made, and a lengthy argument failed to show that error in the trial below was committed, but we are inclined to think that no material error occurred to the prejudice of appellants. The jury held them liable for the value of the dog, and we do not see how they could have done otherwise under the evidence. Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith. We see no reason for interfering with the conclusion reached by the jury, and the judgment will be affirmed. NOTES AND QUESTIONS 1. Did the defendant intend to kill the dog? The court calls it mistake. Why not accident? 2. Defendant fuel oil distributor had a contract to deliver oil to a residence. One day, during the delivery, the oil overflowed and damaged surrounding lawn and

15 1. INTENT 25 shrubberies. The tank overflowed because it already had been filled by another company, hired by the new owner. The previous owner apparently had not canceled his contract when he moved. Is the fuel oil distributor liable for trespass? Serota v. M. & M. Utilities, Inc., 55 Misc.2d 286, 285 N.Y.S.2d 121 (1967) (reasonable mistake no defense to trespass). 3. Defendant, seeking to confront the driver who frightened his horses the previous day, pushed back the hat of the wrong man. Does he intend to touch him? Seigel v. Long, 169 Ala. 79, 53 So. 753 (1910). What if a surgeon operates on the wrong patient? Gill v. Selling, 125 Or. 587, 267 P. 812 (1928). Generally, mistake as to the identity of the person or animal does not negate intent. Will the mistake protect the defendant against liability for the result he intended to cause? There is general agreement that it does not where the defendant by mistake appropriates property of the plaintiff. If he is not held liable for his mistake, he would be unjustly enriched. Perry v. Jefferies, 61 S.C. 292, 39 S.E. 515 (1901) (cutting and removing timber from plaintiff s land under a reasonable belief that defendant owned it); Dexter v. Cole, 6 Wis. 319, 70 Am.Dec. 465 (1857) (driving off plaintiff s sheep, believed to be defendant s). 4. On the other hand, some of the defendant s privileges depend, not upon the existence of a fact, but upon the reasonable belief that the fact exists. Defendant, seeing the plaintiff reach for a handkerchief in his pocket, reasonably believes that he is reaching for a gun, and strikes plaintiff to defend himself. See page 105. Mistakes as to the existence of a privilege are dealt with in Chapter 3 in connection with the privilege itself. McGuire v. Almy Supreme Judicial Court of Massachusetts, Mass. 323, 8 N.E.2d 760. QUA, JUSTICE. This is an action of tort for assault and battery. The only question of law reported is whether the judge should have directed a verdict for the defendant. The following facts are established by the plaintiff s own evidence: In August, 1930, the plaintiff was employed to take care of the defendant. The plaintiff was a registered nurse and was a graduate of a training school for nurses. The defendant was an insane person. Before the plaintiff was hired she learned that the defendant was a mental case and was in good physical condition, and that for some time two nurses had been taking care of her. The plaintiff was on 24 hour duty. The plaintiff slept in the room next to the defendant s room. Except when the plaintiff was with the defendant, the plaintiff kept the defendant locked in the defendant s room. * * * On April 19, 1932, the defendant, while locked in her room, had a violent attack. The plaintiff heard a crashing of furniture and then knew that the defendant was ugly, violent and dangerous. The defendant told the plaintiff and a Miss Maroney, the maid, who was with the plaintiff in the adjoining room, that if they came into the defendant s room, she would kill them. The plaintiff and Miss Maroney looked into the defendant s room, saw what the defendant had done, and thought it best to take the

16 26 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY broken stuff away before she did any harm to herself with it. They sent for a Mr. Emerton, the defendant s brother-in-law. When he arrived the defendant was in the middle of her room about ten feet from the door, holding upraised the leg of a low-boy as if she were going to strike. The plaintiff stepped into the room and walked toward the defendant, while Mr. Emerton and Miss Maroney remained in the doorway. As the plaintiff approached the defendant and tried to take hold of the defendant s hand which held the leg, the defendant struck the plaintiff s head with it, causing the injuries for which the action was brought. The extent to which an insane person is liable for torts has not been fully defined in this Commonwealth. * * * Turning to authorities elsewhere, we find that courts in this country almost invariably say in the broadest terms that an insane person is liable for his torts. As a rule no distinction is made between those torts which would ordinarily be classed as intentional and those which would ordinarily be classed as negligent, nor do the courts discuss the effect of different kinds of insanity or of varying degrees of capacity as bearing upon the ability of the defendant to understand the particular act in question or to make a reasoned decision with respect to it, although it is sometimes said that an insane person is not liable for torts requiring malice of which he is incapable. Defamation and malicious prosecution are the torts more commonly mentioned in this connection. * * * These decisions are rested more upon grounds of public policy and upon what might be called a popular view of the requirements of essential justice than upon any attempt to apply logically the underlying principles of civil liability to the special instance of the mentally deranged. Thus it is said that a rule imposing liability tends to make more watchful those persons who have charge of the defendant and who may be supposed to have some interest in preserving his property; that as an insane person must pay for his support, if he is financially able, so he ought also to pay for the damage which he does; that an insane person with abundant wealth ought not to continue in unimpaired enjoyment of the comfort which it brings while his victim bears the burden unaided; and there is also a suggestion that courts are loath to introduce into the great body of civil litigation the difficulties in determining mental capacity which it has been found impossible to avoid in the criminal field. The rule established in these cases has been criticized severely by certain eminent text writers both in this country and in England, principally on the ground that it is an archaic survival of the rigid and formal mediaeval conception of liability for acts done, without regard to fault, as opposed to what is said to be the general modern theory that liability in tort should rest upon fault. Notwithstanding these criticisms, we think, that as a practical matter, there is strong force in the reasons underlying these decisions. They are consistent with the general statements found in the cases dealing with the liability of infants for torts, [cc] including a few cases in which the child was so young as to render his capacity for fault comparable to that of many insane persons, [cc]. Fault is by no means at

17 1. INTENT 27 the present day a universal prerequisite to liability, and the theory that it should be such has been obliged very recently to yield at several points to what have been thought to be paramount considerations of public good. Finally, it would be difficult not to recognize the persuasive weight of so much authority so widely extended. But the present occasion does not require us either to accept or to reject the prevailing doctrine in its entirety. For this case it is enough to say that where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable. This means that in so far as a particular intent would be necessary in order to render a normal person liable, the insane person, in order to be liable, must have been capable of entertaining that same intent and must have entertained it in fact. But the law will not inquire further into his peculiar mental condition with a view to excusing him if it should appear that delusion or other consequence of his affliction has caused him to entertain that intent or that a normal person would not have entertained it. * * * Coming now to the application of the rule to the facts of this case, it is apparent that the jury could find that the defendant was capable of entertaining and that she did entertain an intent to strike and to injure the plaintiff and that she acted upon that intent. See American Law Institute Restatement, Torts, 13, 14. We think this was enough. * * * [The rest of the opinion holds that whether the plaintiff consented to the attack or assumed the risk of it is an issue to be left to the jury. There was no evidence that the defendant had previously attacked any one or made any serious threat to do so. The plaintiff had taken care of the defendant for fourteen months without being attacked. When the plaintiff entered the room the defendant was breaking up the furniture, and it could be found that the plaintiff reasonably feared that the defendant would do harm to herself. Under such circumstances it cannot be ruled as a matter of law that the plaintiff assumed the risk.] Judgment for the plaintiff on the verdict. NOTES AND QUESTIONS 1. Can someone who is mentally ill have an intent to do harm to another? And if so, how can such an intent be fault? How does the insane person differ from the automobile driver who suffers a heart attack, in Cohen v. Petty, page 10? 2. Note that the tort law standards differ from the criminal law standards for holding the mentally ill responsible for their actions. Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988) (defendant liable for battery of plaintiff s decedent even though he was found not guilty by reason of insanity in criminal case arising out of same incident); Delahanty v. Hinckley, 799 F.Supp. 184 (D.D.C. 1992) (rejecting defendant s argument that he should not be liable to plaintiff police officer who was injured when defendant shot at President Reagan because he was in a deluded and psychotic state of mind and found not guilty by reason of insanity in criminal case).

18 28 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY 3. Despite criticism, the American decisions are unanimous in their agreement with the principal case. Mentally disabled persons may be held responsible for their intentional torts as long as plaintiff can prove that they formed the requisite intent. Restatement (Second) 895J (1979). See also White v. Muniz, 999 P.2d 814 (Colo. 2000) (in battery claim against defendant with Alzheimer s, plaintiff must prove defendant desired to cause contact that was offensive or harmful). 4. Mental illness may prevent the specific kind of intent necessary for certain torts, such as deceit, that require the plaintiff to prove that the defendant knew that he was not speaking the truth. See Irvine v. Gibson, 117 Ky. 306, 77 S.W (1904); Chaddock v. Chaddock, 130 Misc. 900, 226 N.Y.S. 152 (1927); Beaubeauf v. Reed, 4 La.App. 344 (1926). 5. An action also may lie against persons responsible for caring for the mentally ill person, based on negligent supervision, but only if a caretaking responsibility has been assumed. Familial relationship only is not enough. Rausch v. McVeigh, 105 Misc.2d 163, 431 N.Y.S.2d 887 (1980) (cause of action for negligent supervision against parents of 22 year old autistic son who attacked his therapist); Shirdon v. Houston, 2006 WL (Ohio App.) (no duty to supervise adult son even though father knew his son could be aggressive and combative); and Kaminski v. Town of Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990) (accord). 6. Several jurisdictions have carved out a narrow exception to this general rule, holding that an institutionalized mentally disabled patient who cannot control or appreciate the consequences of his conduct cannot be held liable for injuries caused to those employed to care for the patient. The jurisdictions that have addressed this issue have done so both in the context of intentional torts and negligence. Gould v. American Family Mutual Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282 (1996) (negligence action brought against patient with Alzheimer s); Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000) (same); Anicet v. Gant, 580 So.2d 273 (Fla.App. 1991) (assault and battery against twenty-three-year-old man suffering from irremediable mental difficulties who was unable to control himself from acts of violence). 7. Intoxication. What if the defendant is intoxicated? Does intoxication preclude a showing of intent? Bar patron passed out or fell asleep at bar and other patrons agreed to drive him home. Bar employee helped him from bar and was putting him into the back seat of a car when he began shouting obscenities and kicked the employee in the face, seriously injuring him. Sufficient intent for battery? Janelsins v. Button, 102 Md.App. 30, 648 A.2d 1039 (1994) (voluntary intoxication does not vitiate intent). Talmage v. Smith Supreme Court of Michigan, Mich. 370, 59 N.W MONTGOMERY, J. The plaintiff recovered in an action of trespass. The case made by plaintiff s proofs was substantially as follows: * * * Defendant had on his premises certain sheds. He came up to the vicinity of the sheds, and saw six or eight boys on the roof of one of them. He claims that he ordered the boys to get down, and they at once did so. He then passed around to where he had a view of the roof of another shed, and saw two boys on the roof. The defendant claims that he did not see the plaintiff, and the proof is not very clear that he did, although there was some testimony from which

19 1. INTENT 29 it might have been found that he was within his view. Defendant ordered the boys in sight to get down, and there was testimony tending to show that the two boys in defendant s view started to get down at once. Before they succeeded in doing so, however, defendant took a stick, which is described as being two inches in width, and of about the same thickness, and about 16 inches long, and threw it in the direction of the boys; and there was testimony tending to show that it was thrown at one of the boys in view of the defendant. The stick missed him, and hit the plaintiff just above the eye with such force as to inflict an injury which resulted in the total loss of the sight of the eye. * * * George Talmage, the plaintiff s father, testifies that defendant said to him that he threw the stick, intending it for Byron Smith, one of the boys on the roof, and this is fully supported by the circumstances of the case. * * * The circuit judge charged the jury as follows: If you conclude that Smith did not know the Talmage boy was on the shed, and that he did not intend to hit Smith, or the young man that was with him, but simply, by throwing the stick, intended to frighten Smith, or the other young man that was there, and the club hit Talmage, and injured him, as claimed, then the plaintiff could not recover. If you conclude that Smith threw the stick or club at Smith, or the young man that was with Smith, intended to hit one or the other of them, and you also conclude that the throwing of the stick or club was, under the circumstances, reasonable, and not excessive, force to use towards Smith and the other young man, then there would be no recovery by this plaintiff. But if you conclude from the evidence in this case that he threw the stick, intending to hit Smith, or the young man with him, to hit one of them, and that that force was unreasonable force, under all the circumstances, then [the defendant] would be doing an unlawful act, if the force was unreasonable, because he had no right to use it. He would be liable then for the injury done to this boy with the stick. * * * [The jury rendered a verdict for the plaintiff.] We think the charge is a very fair statement of the law of the case. * * * The right of the plaintiff to recover was made to depend upon an intention on the part of the defendant to hit somebody, and to inflict an unwarranted injury upon some one. Under these circumstances, the fact that the injury resulted to another than was intended does not relieve the defendant from responsibility. * * * The judgment will be affirmed, with costs. NOTES AND QUESTIONS 1. This doctrine of transferred intent was derived originally from the criminal law and dates back to the time when tort damages were awarded as a side issue in criminal prosecutions. It is familiar enough in the criminal law, and has been applied in many tort cases where the defendant has shot at A, struck at him, or thrown a punch or rock at him, and unintentionally hit B instead. See, for example, Lopez v. Surchia, 112 Cal.App.2d 314, 246 P.2d 111 (1952) (shooting); Carnes v. Thompson, 48 S.W.2d 903 (Mo.1932) (striking with pliers); Baska v. Scherzer, 283 Kan. 750, 156 P.3d 617 (2007) (while throwing punches at each other,

20 30 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY teenagers hit a woman who stepped between them to stop the fight); Singer v. Marx, 144 Cal.App.2d 637, 301 P.2d 440 (1956) (throwing a rock). 2. The doctrine is discussed in Prosser, Transferred Intent, 45 Tex.L.Rev. 650 (1967). The conclusion there is that it applies whenever both the tort intended and the resulting harm fall within the scope of the old action of trespass that is, where both involve direct and immediate application of force to the person or to tangible property. There are five torts that fell within the trespass writ: battery, assault, false imprisonment, trespass to land, and trespass to chattels. When the defendant intends any one of the five, and accomplishes any one of the five, the doctrine applies and the defendant is liable, even if the plaintiff was not the intended target. 3. Thus he is liable when he shoots to frighten A (assault) and the bullet unforeseeably hits a stranger (battery). Brown v. Martinez, 68 N.M. 271, 361 P.2d 152 (1961); Hall v. McBryde, 919 P.2d 910 (Colo.App.1996) (firing at passing car and hitting neighbor). Or when he shoots at a dog (trespass to chattels) and hits a boy scout (battery). Corn v. Sheppard, 179 Minn. 490, 229 N.W. 869 (1930). What if defendant, believing a house to be empty, intends arson (trespass to chattels) and accomplishes battery (sleeping man killed by smoke inhalation)? Cf. Lewis v. Allstate Ins. Co., 730 So.2d 65 (Miss. 1998). 4. On the other hand, when either the tort intended or the one accomplished does not fall within the trespass action, the doctrine does not apply. Clark v. Gay, 112 Ga. 777, 38 S.E. 81 (1901) (defendant committed murder in plaintiff s house and plaintiff sought value of house because his family refused to live there after the murder); McGee v. Vanover, 148 Ky. 737, 147 S.W. 742 (1912) (defendant inflicted beating on A, causing mental distress to plaintiff bystander). 2. BATTERY Cole v. Turner Nisi Prius, Modern Rep. 149, 90 Eng.Rep At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C.J., declared: 1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently it will be no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. NOTES AND QUESTIONS 1. In United States v. Ortega, 4 Wash.C.C. 531, 27 Fed.Cas. 359 (E.D.Pa. 1825), defendant approached the plaintiff in an offensive manner, took hold of the breast of his coat, and said that he demanded satisfaction. Is this a battery? 2. What about spitting in the plaintiff s face? Alcorn v. Mitchell, 63 Ill. 553 (1872). Or forcibly removing his hat? Seigel v. Long, 169 Ala. 79, 53 So. 753 (1910). Or an attempted search of his pockets? Piggly Wiggly Alabama Co. v. Rickles, 212 Ala. 585, 103 So. 860 (1925). Or touching her private parts? Skousen v. Nidy, 90

21 2. BATTERY 31 Ariz. 215, 367 P.2d 248 (1961). Cf. Gates v. State, 110 Ga.App. 303, 138 S.E.2d 473 (1964) (stranger touching woman on the buttocks). 3. What about tapping plaintiff on the shoulder to attract his attention? Pardon me, sir, could you direct me, etc.? Coward v. Baddeley, 4 H. & N. 478, 157 Eng.Rep. 927 (1859). Wallace v. Rosen Court of Appeals of Indiana, N.E.2d 192. KIRSCH, J. Mable Wallace appeals the jury verdict in favor of Indianapolis Public Schools (IPS) and Harriet Rosen, a teacher for IPS. On appeal, Wallace raises the following issues: I. Whether the trial court erred in refusing to give her tendered jury instruction regarding battery. * * * We affirm. FACTS AND PROCEDURAL HISTORY [Rosen was a teacher at Northwest High School in Indianapolis. On April 22, 1994, the high school had a fire drill while classes were in session. The drill was not previously announced to the teachers and occurred just one week after a fire was extinguished in a bathroom near Rosen s classroom. On the day the alarm sounded, Wallace, who was recovering from foot surgery, was at the high school delivering homework to her daughter Lalaya. Wallace saw Lalaya just as Wallace neared the top of a staircase and stopped to speak to her. Two of Lalaya s friends also stopped to talk. Just then, the alarm sounded and students began filing down the stairs while Wallace took a step or two up the stairs to the second floor landing. As Rosen escorted her class to the designated stairway she noticed three or four people talking together at the top of the stairway and blocking the students exit. Rosen did not recognize any of the individuals but approached telling everybody to move it. Wallace, with her back to Rosen, was unable to hear Rosen over the noise of the alarm and Rosen had to touch her on the back to get her attention. Rosen then told Wallace, you ve got to get moving because this is a fire drill. At trial, Wallace testified that Rosen pushed her and she slipped and fell down the stairs. Rosen denied pushing Wallace, but admitted touching her back. At the close of the trial, the trial court judge refused to give the jury an instruction concerning civil battery that was requested by plaintiff. The jury found in favor of IPS and Rosen on the negligence count, and Wallace appealed.] DISCUSSION AND DECISION * * * I. Battery Instruction Wallace first argues that it was error for the trial court to refuse to give the jury the following tendered instruction pertaining to battery:

22 32 CHAPTER 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY A battery is the knowing or intentional touching of one person by another in a rude, insolent, or angry manner. Any touching, however slight, may constitute an assault and battery. Also, a battery may be recklessly committed where one acts in reckless disregard of the consequences, and the fact the person does not intend that the act shall result in an injury is immaterial. * * * The Indiana Pattern Jury Instruction for the intentional tort of civil battery is as follows: A battery is the knowing or intentional touching of a person against [his] [her] will in a rude, insolent, or angry manner. 2 Indiana Pattern Jury Instructions (Civil) (2d ed. Revised 2001). 2 Battery is an intentional tort.[c] In discussing intent, Professors Prosser and Keeton made the following comments: In a loose and general sense, the meaning of intent is easy to grasp. As Holmes observed, even a dog knows the difference between being tripped over and being kicked. This is also the key distinction between two major divisions of legal liability negligence and intentional tortstttt It is correct to tell the jury that, relying on circumstantial evidence, they may infer that the actor s state of mind was the same as a reasonable person s state of mind would have been. Thus, TTT the defendant on a bicycle who rides down a person in full view on a sidewalk where there is ample room to pass may learn that the factfinder (judge or jury) is unwilling to credit the statement, I didn t mean to do it. On the other hand, the mere knowledge and appreciation of a risk something short of substantial certainty is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. The line has to be drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty. The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff s own good. W. PAGE KEETON et al., PROSSER AND KEETON ON THE LAW OF TORTS, 8, at 33, (5th ed.1984) (footnotes omitted). 2. The Indiana Pattern Jury Instructions are prepared under the auspices of the Indiana Judges Association and the Indiana Judicial Conference Criminal and Civil Instruction Committees. Although not formally approved for use, they are tacitly recognized by Indiana Trial Rule 51(E). [C]